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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Real Life Broadcasting, Inc. Licensee of Station WIFI
Florence, New Jersey ) ) ) ) ) ) ) File No.: EB-FIELDNER-12-00002778
NAL/Acct. No.: 201332400004 FRN: 0007-66-4493 Facility ID No.: 55310
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 28, 2014 Released: May 28, 2014
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Real Life Broadcasting, Inc. (Real Life), licensee of Station
WIFI in Florence, New Jersey (Station) apparently willfully and
repeatedly violated Section 73.1745(a) of the Commission's rules
(Rules),^ by failing to operate its Station within authorized power
limitations. We conclude that Real Life is apparently liable for a
forfeiture in the amount of six thousand dollars ($6,000). In
addition, no later than thirty (30) calendar days from the release
date of this NAL, Real Life must submit a statement signed under
penalty of perjury stating that Station WIFI is operating consistent
with its license.
II. BACKGROUND
2. Station WIFI's license authorizes it to operate with 5.25 kilowatts
during the day and 0.540 kilowatts at night.^ On June 6 and June 7,
2012, in response to a complaint, an agent from the Enforcement
Bureau's Philadelphia Office (Philadelphia Office) measured the field
strength of the Station's transmissions during the day and at night
and observed no change in field strength after local sunset time.^
During the month of June, local sunset time is 8:30 p.m. Eastern
Daylight Time (EDT) in Florence, New Jersey.
3. On June 13, 2012, agents conducted an inspection with the Station's
Chief Engineer and found that a computer that automatically controls
the Station's transmitter was programmed with the wrong time for
switching from daytime power to nighttime power. Specifically, the
computer was programmed to change the Station's power from its daytime
power to its nighttime power at 10:30 p.m. for the month of June. In
addition, agents took field strength measurements when the Station was
operating in daytime mode and nighttime mode from the same location as
they had on June 6 and June 7, 2012. By comparing the field strengths
associated with each of those modes, the agents were able to confirm
the Station's overpowered operation on June 6 and June 7, 2012.^
III. DISCUSSION
4. Section 503(b) of the Communications Act of 1934, as amended (Act)
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty.^ Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law.^ The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act,^ and the Commission has so
interpreted the term in the Section 503(b) context.^ The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful.^ The term "repeated" means the commission or
omission of such act more than once or for more than one day.^
A. Failure to Operate within Parameters of License
5. Section 73.1745(a) of the Rules states that "[n]o broadcast station
shall operate at times, or with modes or power, other than those
specified and made part of the license, unless otherwise provided in
this part."^ On June 6 and June 7, 2012, an agent observed that the
Station operated with daytime power after local sunset time. Based on
the evidence before us, we find that Real Life apparently willfully
and repeatedly violated Sections 73.1745(a) of the Rules by failing to
operate within authorized power limits.
B. Proposed Forfeiture Amount
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for exceeding the power
limits is $4,000.^ In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in Section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, any history of prior offenses,
ability to pay, and other such matters as justice may require.^ ^ In
doing so, we find that Real Life's prior overpower operations^
warrants an upward adjustment of $2,000.^ Applying the Forfeiture
Policy Statement, Section 1.80 of the Rules, and the statutory factors
to the instant case, we conclude that Real Life is apparently liable
for a total forfeiture in the amount of six thousand dollars ($6,000).
7. We direct Real Life to submit a written statement, pursuant to Section
1.16 of the Rules,^ signed under penalty of perjury by an officer or
director of Real Life, stating that the Station is currently operating
consistent with its license. This statement must be provided to the
Philadelphia Office at the address listed in paragraph 10, below,
within thirty (30) calendar days of the release date of this NAL.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Real Life
Broadcasting, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of six thousand dollars ($6,000) for
violations of Section 73.1745(a) of the Rules.^
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Real Life
Broadcasting, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
10. IT IS FURTHER ORDERED that Real Life Broadcasting, Inc. SHALL SUBMIT a
statement as described in paragraph 7, above, to the Philadelphia
Office within thirty (30) calendar days of the release date of this
Notice of Apparent Liability for Forfeiture and Order. The statement
must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Philadelphia Office, One Oxford Valley
Building, Suite 404, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047. Real Life Broadcasting, Inc. shall also e-mail the
written statement to NER-Response@fcc.gov.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Real Life Broadcasting, Inc. will also send
electronic notification on the date said payment is made to
NER-Response@fcc.gov. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 445 12th Street, S.W.,
Room 1-A625, Washington, D.C. 20554.^ If you have questions
regarding payment procedures, please contact the Financial Operations
Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Philadelphia Office, One Oxford Valley Building, Suite 404,
2300 East Lincoln Highway, Langhorne, Pennsylvania 19047 and include
the NAL/Acct. No. referenced in the caption. Real Life also shall
e-mail the written response to [1]NER-Response@fcc.gov.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and first class mail to Real Life at 2025 Columbus Road,
Burlington, New Jersey 08016.
FEDERAL COMMUNICATIONS COMMISSION
David C. Dombrowski
District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
^ 47 C.F.R. S 73.1745(a).
^ See File No. BL-920821AA
^ On June 6, 2012, the field strength was measured at 28 mV/m 7:22 p.m.,
8:08 p.m. and 10:00 p.m.. On June 7, 2012, the field strength was measured
at 28 mV/m at 8:47 p.m., 26 mV/m at 10:00 p.m., 27 mV/m at 10:18 p.m., and
27 mV/m at 10:28 p.m.
^ The measured field strength was 26.5 mV/m in daytime mode and 6 mV/m in
nighttime mode. If the Station switched from daytime to nighttime mode on
June 6 and June 7, 2012, the agents would have observed a corresponding
decrease in field strength.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Application for Review of Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons.
denied, 7 FCC Rcd 3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
^ 47 C.F.R. S 73.1745(a).
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ Real Life Broadcasting, Inc., Forfeiture Order, 24 FCC Rcd 11585 (Enf.
Bur. 2009) (violated, inter alia, Section 73.1745(a) of the Rules by
operating with excessive power) (forfeiture paid).
^ See, e.g., Pittman Broadcasting Service, LLC, 28 FCC Rcd 7980 (Enf. Bur.
2013); Donald D. Coss, Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 16924 (Enf. Bur. 2010) (upwardly adjusting forfeiture due to prior
violation of rule at issue); CBS Radio East Inc., Notice of Apparent
Liability for Forfeiture, 24 FCC Rcd 1293 (Enf. Bur. 2009) (upwardly
adjusting forfeiture due to prior violation of rule at issue); Union
Broadcasting, Inc., Forfeiture Order, 19 FCC Rcd 18588 (Enf. Bur. 2004)
(upholding upward adjustment due to prior Notice of Violation citing
multiple violations of the rule at issue).
^ 47 C.F.R. S 1.16.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
73.1745(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
(...continued from previous page)
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Federal Communications Commission DA 14-723
2
Federal Communications Commission DA 14-723
References
Visible links
1. mailto:NER-Response@fcc.gov